General security

Online Defamation Cases - Part I

Introduction

We all know how important it is nowadays to have a clean online record, almost as important as having no previous criminal offences. That is why often page 1 of well-used, popular search engines like Google, Bing and Yahoo is considered sometimes your digital business card or personal record; people can search you anytime and make certain conclusions based on the information they find there.

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So imagine that you are an owner of a respectful business and one morning, out of nowhere, a very critical post appears about you on the top of page 1. Then any potential customer merely by seeing this top post may say "Ok, that's a nasty review for these guys. Maybe it's nothing, but let's not take chances," and skip to your competitor. On that point, world leading companies like Google have a great responsibility to uphold everyone's reputation with the utmost care. And it is not about the interaction between clients and sellers. As you will see, defamation of character can occur for a variety of reasons.

For the purposes of this article, the reference to real names of individuals, firms or websites is reduced to a minimum. Instead, initials are used for people and pseudonyms or paronyms for websites. This is made out of respect to the reputation of the person/firm/website and also to allow the reader to focus on the details surrounding each case, not the names involved. Also, the idea of this article is not dissuade you from using certain services or websites. On the contrary, use them but use them in good faith.

Defamatory Statements made on "Gossip Columns" of Online Community Portals

An ex-Cincinnati Bengals cheerleader sued in 2012 the gossip website TheFilthy.com for defamatory posts made by an anonymous third party discussing her sexual history. Apparently most of the user content submitted is anonymous, however, the website's owner or administrator choses what to post, and at the same time adds comments to the posts. The court of the first instance viewed that the website is not immune under CDA § 230 and allowed the lawsuit to proceed forward. The jury sided with the claimant and she was awarded $338,000 for the mental anguish she had suffered because of the libellous posts. However, the 6^th Circuit Court of Appeals overturned the verdict, pointing to CDA, which according to them, applies to the gossip website and this particular case as well.

A background check-up on the cheerleader's history would show that she was involved in a criminal case against her for having sex with a 17-year-old person, who is now her fiancé. It comes as no surprise that she is a convenient target for gossip websites. Unfortunately for her, by suing one, she just raised the level of attention to the bad things said about her and promoted the popularity of TheFilthy.com.

G.C. was a man in his 30s who worked as a hair stylist and lived in a small American town. After the murder of his fiancée committed by her delirious ex-husband, his life turned into a living hell.

All of a sudden, people began to act strange around him, like when the relatives of the murdered woman, his fiancée, "started asking [him] some unusual questions…about having a drug addiction," and was then being asked to leave and not to come to the funeral service. The dumbfounded man had to arrange for a local sheriff to tell the relatives of the deceased that his criminal record was clean.

Not long after that he lost his job. "Because of rumours and gossip. That's exactly what I was told."

Ultimately, he found that all the heat was coming from a nasty discussion on a Sicklist forum. Sicklist is an online news platform catering for small American towns mostly. It operates in 5,000 towns and cities, generates 125,000 posts a day on average, and allows citizens to report and openly debate. Yet frequently the website looks less like a newspaper and more like a graffiti wall, which mixes ordinary community news and chitchat with anonymous personal commentaries. In a series of such anonymous commentaries, G.C. was vilified big time as a drug addict, pervert, paedophile, and a possible accomplice in his fiancée's murder.

The victim then contacted the local attorney R. S., who began working on the case right away. Since the defamatory comments on Sicklist were made by anonymous users, he needed to discover the IP addresses behind the nicknames. After long 2 years, R. S. succeeded in making Sicklist turn over the IP addresses of G.C.'s critics.

In fact, we should use the singular form because it turned out that almost all the venom vented on G.C. had come from one woman with the name S.D.B. Our guy had no clue who she was, at least at first. Later it was established that S.D.B. used to work with the victim at a department store a decade ago. Using several pseudonyms on Sicklist, but mostly "Mouth," she had labelled G.C. a pervert, drug addict and a potential accomplice in the murder of his fiancée.

In 2010, this case entered a courtroom, and S.D.B. was tried on defamation charges. She openly admitted that she criticized G.C. on the online news blog in order to get a payback for what she perceived as an inappropriate behaviour on G.C.'s part toward her in the past. She brought forward the argument that it was her First Amendment right to post what she did to G.C. In his role of attorney, R. S. raised an objection: "The First Amendment doesn't have a damn thing to do with defamation." He further recounted the story: "I put her on the stand and said, Defend yourself. I stepped back and let her say anything she wanted to say the jury. And they hated her. We got a verdict of $404,000 -- $250,000 of it was punitive damages."

Also, R. S. warned other potential denigrators: "[Websites like Sicklist may be used as] an outlet for individuals that harbour a dark side to anonymously blast people. I have caught a preacher's wife. I have caught people that work in the courthouse. 9-1-1 operators. These bastards are doing character assassination. And they're just tripping off, thinking they got away with it. Well they don't get away with it anymore."

Online Defamatory Statements: Revenge of The Ex

A couple years ago, L.D.C. dated a woman named L.C.Y. while he was teaching in a local institute. They broke up badly and the woman initiated a campaign of libellous postings about L.D.C. on a number of websites, suggesting that he was a paedophile having amorous relations with students.

The teacher sued L.C.Y. in Malaysia, where she was found guilty of defamation and sentenced to pay about $66,000 in damages. Furthermore, the Malaysian judge ordered Google, Bing and Yahoo to block the plaintiff's name from being searchable. Because laws are interpreted differently in different parts of the world, a ruling issued by a Malaysian court has little to almost no potency in California, where most of the search engine providers' headquarters are. Hence, now L.D.C. lives in Vancouver, but his name is still searchable and the harassment continues to this day.

Asking search engines to deal with defamatory materials existing on the wild could be of no effect whatsoever, because those only index material coming from other sites, and they do not possess mechanisms for weeding out defamatory URLs. At least they say so. Therefore, you may have a better chance of getting results if you directly approach the websites where the offensive materials are published, according to the president of a Toronto-based reputation company Matt Earle. He further adds that there are some websites, like the ones where the victim of this case was defamed, "that are set up on a borderline-extortion business model. They charge money to remove defamatory material."

A vengeful ex-boyfriend decided to post nude photos of the Vancouver woman A.S. on the American website TheFilthy.com without her permission. Not only did the images expose her, but they were also accompanied by condemnatory remarks made by the blog readers calling her an escort, liar and HIV carrier. "It was horrifying. I just felt like my life was over. I felt violated," said A.S. to Global News.

She filed a complaint with the local police force, but the response she got from them was rather cold: "They kept saying because I shared the photos willingly it was my fault," said the young Canadian. "These were private photos that I shared with one person."

Deanne Gaffar, a Vancouver criminal lawyer, viewed that the current law would not allow police officers to do much to help her. That could change soon, he suggested. If Bill C-13 is given the green light, it will make the publication of intimate images without consent a criminal act.

The victim advised people trapped in this situation to send first a cease-and-desist letter to the website where the images or comments are posted. However, here the problem lied in the fact that TheFilthy.com is hosted in the United States, and the Communications Decency Act section 230
gives Internet service providers immunity against liability for content put up by third parties. In other words, the website is usually not bound to comply with a court order, let alone a cease-and-desist letter. According to Canadian attorney Andrew Aguilar, "If the websites were located in Canada, it would be a lot easier to get the images taken down. Here, a person's reputation is given more protection than an individual's right to free speech. Additionally, defamation laws in the two countries vary quite a bit."

On the other hand, there is a specific knack in the American legislation – a notification of a breach of copyright laws will make the host take down the defamatory content. For that purpose, the person demanding removal will have to prove that he is the copyright owner of the picture, for instance, or the copyright is assigned to him.

The victim of this story eventually leveraged a third option. She paid an online reputation management company $2,000 to have the humiliating material removed. A.S. further added:

"It's a crime posting lies about someone — it's defamation, it's libel, and no one is monitoring that. The government needs to have harsher laws against leaking private photos…in regards to not just protecting minors, but protecting all Canadians of any age. I demand to be protected—not just me but everyone who's in my situation."

Here you can read another horrific first-hand story of online defamation, cyberbullying, and copyright infringement that happened in Canada.

Online Defamatory Statements Involving Celebrities

In 2010, the celebrity C.L. posted a tweet saying that one of her attorneys, R.H., had been "bought off" and that was the reason why this attorney did not represent the celebrity anymore. Of course, the other party was stung by these words and brought the case to the court. R.H. maintained during the trial that she was fired by C.L. and that the tweet in question along with other statements have caused significant damage. C.L. claimed in her defence that the tweet was meant to be sent as a direct message (i.e., for private use), instead it somehow went public but she succeeded in deleting it quickly.

Although the defendant's tweet did include false information, jurors said that she didn't know it wasn't true. The other party was disappointed with this verdict – she was after a compensation of $8 million – but her reputation was upheld, and as her lawyer concluded: "At the end of the day, her biggest asset in life is her reputation. That she got back today."

Another defamatory case about celebrity – a wrestler, politician, and radio host all in one – whose reputation of a person throwing out colourful comments precedes him everywhere he goes, everything he does. The other party was C.K., a former member of the Navy SEALs who had written a popular best-selling book, which will be made into a movie by Clint Eastwood. Being fatally shot after the claim was filed, his wife had to take his place as a defendant.

According to J.V., the book contained passages where he participated and that were false and defamatory. The author did not mention directly J.V.'s name, but he made an allusion in a chapter titled "Punching Out Scruff Face" to a real-life confrontation with a celebrity that happened in a California bar in 2006. After the book's release, C.K. stated in an interview that the person referred to in the book was J.V.

When he was questioned on the witness stand, J.V. acknowledged being at that bar, which is visited by Navy units like the SEALs on a regular basis. He underscored, however, that he had not said back then something derogatory to the SEALs like that they deserved "to lose a few," neither he had been "punched out" by the author – all situations described in the book.

J.V. wouldn't have resorted to litigation had the late defendant admitted that his story of the bar fight was untrue and just apologized. "I was handcuffed," he said to the jurors. And the jury's decision was in his favour. J.V. was awarded more than $1.3 million for unjust enrichment.

Note: You probably wonder where the cyber part is in this case. One of the parties made use of the online media to announce its position at first. Besides, the whole story hit the fan on the Internet.

Other Types of Internet Defamation Cases

The Australian citizen claimed: first, that an image of him next to underground figures, including a drug baron, appeared on the search engine Gesus-JustMapItAll; and second, that a Gesus-JustMapItAll search made his name appear in stories that implicated him in an unsolved shooting in 2004. By the plaintiff's account, this faulty information and the way it was being offered to the public had caused him reputational damages "leading him to be ostracised within his migrant community."

Although Gesus-JustMapItAll attempted to explain in the courtroom that search processes are performed through automated algorithms that browse and index the web content, the jury decided in favour of the claimant, with respect to the first part. The "innocent dissemination" immunity was in force up until 2009 when the 42-year-old Australian's legal counsellor contacted Gesus-JustMapItAll to have the image removed. With regard to the contended URL showing up on the Gesus-JustMapItAll's web search and leading to allegedly defamatory content, the court ruled this claim out because the claimant did not follow the standard procedure for reporting such offensive content to Gesus-JustMapItAll.

"I've lived in Australia (for) 41 years. This case is not about money, it's about protecting my family, my children and reputation. I used to go (to) a little restaurant every week. Now people won't talk to me. [Gesus-JustMapItAll] needs to be held accountable," the Australian said.

By Sean MacEntee

The first Twitter defamation battle in Australia to be waged in the courtroom is between a school teacher and a former pupil.

AF's father (the student) used to work on the position occupied by C.M. (the teacher), but he left due to health problems. Perhaps that is the reason why the defendant posed several libellous comments about the teacher on Twitter and Facebook. The judge seemed to support somewhat this standpoint: "For some reason it seems that the defendant bears a grudge against the plaintiff, apparently based on the belief that she had something to do with his father leaving the school."

The young man decided to ignore a letter demanding him to remove the problematic content sent by M.F.'s lawyers in November 2012, but he removed the comments and apologised after they wrote to him for a second time a month later. The judge found that the ostensible sincerity of this apology was in a sharp contrast with the desire that the defendant demonstrated to argue that his comments were true and to claim that the defence had "no substance."

In forming his decision, the judge had recourse to this rationale: "When defamatory publications are made on social media it is common knowledge that they spread." He believed that the comments had had a "devastating effect" on the teacher's reputation, who took a sick leave shortly after the defamatory material on her was made available. Ever since, she has not managed to reinstate its status at her work place.

The judge ordered A.F. to pay $85,000 in compensatory and $20,000 in aggravated damages (because of the young man's attitude during the trial) to the school teacher.

S.S., the plaintiff, operates a referral service named Parents Universal Resource Experts. She asserts that she referred C. B. to a consultant to help C.B. retrieve her sons from a boarding school for teens with behaviour problems. At some point later, C.B. started to post negative comments about S.S. on the website Auschnits.com, where parents that have children in schools for troubled teens exchange experience, opinions and general information. Allegedly, C.B. addressed the claimant as a "crook," a "fraud," and a "con artist."

The claimant "wanted to make a point to those who unfairly criticize others on the Internet" and decided to file a lawsuit in 2003 against C.B. Even though the latter appointed a lawyer at the beginning, not long after that she could not afford to pay his fees anymore. During that time the accused was engaged in renovation of her house damaged severely by the Hurricane Katrina. Without being represented in the court by an attorney, or even appear in person, C.B. lost the case and S.S. was awarded $11.3 million.

Now, you can argue that this ruling was too harsh or that the point was made, be that as it may, but the bright contrast in the opinions of the two parties to this case is something worthy of notice:

"People are using the Internet to destroy people they don't like, and you can't do that," said S.S.

"I don't feel like I can express my opinions. Only one side of the story was told in court. Nobody heard my side," said C. B.

All three persons to stand trial are three separate cases of local journalists held on criminal defamation charges against persons that occupy high positions in the government hierarchy of Cameroon.

G. N. was taken into custody, where he awaited a possible trial against him for writing an article that accused of embezzlement the head of the Cameroonian Football Federation's normalization committee J. O.

Z. N. was sentenced to prison after a libel suit for his article in the latest issue of La Zenith, stating that the finance ministry chief of staff U. E. M. was going to be imprisoned for illicit enrichment. Z.N.'s wife complained that she was denied visiting his husband or supplying him with his medicine since he was moved to another prison.

A. T. N., the third journalist, was sentences to 4 months in prison and 10 million CFA francs (15, 000 euro) in damages for a couple of articles in the Monitor against alleged dealings organized by the Cameroon Co-operative Credit Union League. According to Reporters Without Borders, the arrest and conviction of A. T. N were in violation of Cameroon's law because the maximum penalty for defamation envisaged by the local penal code is 6 months in prison and damages of 2 million CFA francs (3, 000 euro). In addition, article 218 of the code of criminal procedure allows pre-trial detention of people with a known address only when the case constitutes a serious crime. All these libel cases prosecuted on the state's own initiative occurred in a country that was about to host not long after that a seminar on the decriminalization of media offences.

The head of the Reporters Without Borders Africa desk said: "These three cases highlight the contradictions of a government that portrays itself as a democratic while imprisoning the Fourth Estate [that is, journalism]."

Conclusion

Defamation on the Internet is a problem that will undoubtedly grow in size as the technological means of communication improve. Self-evidently, there can be many scenarios that would eventually lead to the same result – defamation followed by a due response.

In principle, there is nothing wrong a person to voice his opinion if he thinks he was wronged somehow or just wants to express his point of view. And in principle, there is nothing wrong with websites providing people the opportunity to voice their opinion. Just remember not to go beyond that point where common decency usually is. Otherwise, you risk overstepping the mark and geting yourself into real troubles.

Reference List

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Posted: November 6, 2014

Dimitar Kostadinov

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Dimitar Kostadinov applied for a 6-year Master’s program in Bulgarian and European Law at the University of Ruse, and was enrolled in 2002 following high school. He obtained a Master degree in 2009. From 2008-2012, Dimitar held a job as data entry & research for the American company Law Seminars International and its Bulgarian-Slovenian business partner DATA LAB. In 2011, he was admitted Law and Politics of International Security to Vrije Universiteit Amsterdam, the Netherlands, graduating in August of 2012. Dimitar also holds an LL.M. diploma in Intellectual Property Rights & ICT Law from KU Leuven (Brussels, Belgium). Besides legal studies, he is particularly interested in Internet of Things, Big Data, privacy & data protection, electronic contracts, electronic business, electronic media, telecoms, and cybercrime. Dimitar attended the 6th Annual Internet of Things European summit organized by Forum Europe in Brussels.